Citation Nr: 0836540
Decision Date: 10/23/08 Archive Date: 10/31/08
DOCKET NO. 06-10 609 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for allergies.
2. Entitlement to service connection for degenerative disc
disease of the cervical spine, claimed as neck pain,
including as secondary to the service-connected lumbar spine
disability.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1970 to January
1972.
This appeal comes before the Board of Veterans' Appeals
(Board) from a February 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia. The Board remanded the claims for
additional development in April 2008.
The issue of service connection for allergies is addressed in
the REMAND portion of the decision below and is REMANDED to
the RO via the Appeals Management Center in Washington, DC.
FINDINGS OF FACT
The veteran's current cervical spine disorder was not present
until many years after service and was not caused or
aggravated by his service connected lumbosacral strain.
CONCLUSION OF LAW
A cervical spine disorder was not incurred in or aggravated
by service and may not be presumed to have been incurred in
service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.306,
3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that his cervical spine disorder is due
to service or is secondary to his service-connected back
disability. He contends that he never complained about his
neck because he thought it was the same disorder as the low
back disability.
Duties to Notify and Assist
1. Duty to Notify
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in September 2004 that fully
addressed all notice elements and was sent prior to the
initial RO decision in this matter. The letter informed him
of what evidence was required to substantiate the claim and
of his and VA's respective duties for obtaining evidence.
There is no allegation from the veteran that he has any
evidence in his possession that is needed for full and fair
adjudication of this claim. Under these circumstances, the
Board finds that the notification requirements of the VCAA
have been satisfied as to both timing and content.
With respect to the Dingess requirements, in March 2006, the
RO provided the veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal.
Therefore, adequate notice was provided to the veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b).
2. Duty to Assist
In addition, the duty to assist the veteran to develop the
claim is fulfilled. VA has a duty to assist the veteran in
the development of the claim. This duty includes assisting
the veteran in the procurement of service medical records and
pertinent treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained and the veteran
has submitted VA treatment records. The veteran was afforded
a VA medical examination in October 2004 and an addendum for
a medical opinion was obtained in June 2008. Significantly,
neither the veteran nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist the veteran in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
The record establishes the veteran was afforded a meaningful
opportunity to participate in the adjudication of the claims.
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All
requirements of the duty to notify the veteran and the duty
to assist the veteran are met.
Service Connection
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease contracted in the line of duty
in the active military, naval or air service. 38 U.S.C.A. §
1110; 38 C.F.R. § 3.303. That an injury incurred in service
alone is not enough. There must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Service connection may also be granted for certain chronic
diseases when such disease is manifested to a compensable
degree within one year of separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307,
3.309. In addition, service connection may be granted for
any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that a disease was incurred in service. 38 C.F.R. §
3.303(d). Service connection may also be granted for any
disability which is proximately due to a service-connected
disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown,
7 Vet. App. 439, 448 (1995). Generally, to prove service
connection, the record must contain: (1) medical evidence of
a current disability, (2) medical evidence, or in certain
circumstances, lay testimony of an inservice incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the inservice
disease or injury. Pond v. West, 12 Vet. App. 341 (1999);
Caluza v. Brown, 7 Vet. App. 498 (1995).
Examination upon entry into service in June 1970 was negative
for any complaints of neck pain or neck problems. Service
medical records are negative for complaints of neck pain or
neck problems. The veteran was seen for low back pain that
had recently developed in August 1970. Spondylolysis of L5
was diagnosed. He was seen for the pain several times that
month. A November 1970 notation describes a recurrence of
low back pain, spondylosis and tenderness at L5, and a full
range of motion. In December 1970 the veteran was seen in
the physical therapy clinic for low back pain. He was put on
a lumbar strain program. In February 1971 he complained of
pain in his right shoulder. An April 1971 notation indicated
that the veteran was going to come back to be seen for his
back. Examination upon discharge from service was negative
for any neck pain or neck problems.
In March 1972, the veteran filed a claim with VA for his
back. No mention was made of neck problems. A June 1972
radiologic examination showed a slight degree of
levioscoliosis but an otherwise unremarkable spine. An
August 1972 VA examination for the back claim did not note
any neck problems or complaints of neck problems, despite the
fact that the veteran did complain of other ailments besides
his back, such as his knees. Similarly, at a March 1983 VA
examination for the back the veteran did not complain about
his neck and no neck problems were noted.
A June 2004 neck examination was normal. The veteran filed
his claim for a neck disorder in August 2004. The first
medical evidence relating to his claimed neck disorder is a
VA examination dated October 2004. Radiating pain on motion
was noted. There was muscle spasm and tenderness. Range of
motion of the cervical spine was flexion to 45 degrees with
pain, extension to 35 degrees with pain, bilateral flexion to
20 degrees on each side with pain, and bilateral rotation to
65 degrees on each side with pain. Pain, fatigue, weakness,
lack of endurance, and incoordination were noted.
Degenerative disease of the cervical spine was diagnosed.
The examiner noted that the veteran injured his lower back
and cervical spine in 1970.
The Board notes that the examiner's note that the veteran had
injured his neck in 1970 is not based on medical records but
on a history provided by the veteran. Medical history
provided by a veteran and recorded by an examiner without
additional enhancement or analysis is not competent medical
evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
However, the U.S. Court of Appeals for Veterans Claims
(Court) has held that VA can not reject a medical opinion
simply because it is based on a history supplied by the
veteran and that the critical question is whether that
history was accurate. Kowalski v. Nicholson, 19 Vet. App.
171 (2005); see, e. g.,Coburn v. Nicholson, 19 Vet. App. 427,
432 (2006) (reliance on a veteran's statement renders a
medical report incredible only if the Board rejects the
statements of the veteran); McLendon v. Nicholson, 20 Vet.
App. 79 (2006) (discussing circumstances when a VA
examination is required).
The Board finds the examiner's report of the veteran's
symptoms credible, as it is consistent with the existing
medical records. However, there is no medical evidence on
which to base the contention that the veteran injured his
neck in 1970. The only evidence of such an injury are the
statements made by the veteran over thirty years after the
alleged injury. The veteran is certainly competent to
testify as to his own symptoms. See Barr v. Nicholson, 21
Vet. App. 303, 307 (2007). However, his testimony alone,
without the support of a medical opinion as to diagnosis and
causation, is not sufficient evidence of an in service injury
so as to merit granting this claim. Jones v. Brown, 7 Vet.
App. 134, 137 (1994), Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992).
The first evidence of the veteran seeking medical treatment
for his neck is not dated until November 2004, when the
veteran reported to a VA provider that his neck pain had
started four days prior. He had pain with motion which he
rated as a three out of ten. After this visit, the veteran
was seen again for complaints of neck pain, including in
March 2005 when he complained of neck pain that radiated down
his chest, back, and legs; and in April 2005 when cervical
spasm and degenerative joint disease of the cervical spine
were noted.
An addendum to the October 2004 opinion was obtained in June
2008. It was intended to address the etiology of the
veteran's neck disorder. The examiner found that it was less
likely than not that the veteran had injured his neck in
service, since there were no complaints for many years, since
radiologic examination in 1983 showed no neck problems, and
since the veteran's disorder was consistent with a person his
age with degenerative joint disease. The examiner also found
that the neck disorder was less likely than not related to
the service-connected low back disability, since one does not
result in the pathology of the other. In evaluating the
probative value of competent medical evidence, the Court has
stated that "The probative value of medical opinion evidence
is based on the medical expert's personal examination of the
patient, the physician's knowledge and skill in analyzing the
data, and the medical conclusion that the physician
reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470-71
(1993). The Board finds that this opinion is credible
evidence against the veteran's claim, since the examiner
thoroughly explained his rationale and based it on the
veteran's history and on medical pathology. The Board also
affords this opinion more weight than the October 2004
examiner's statement that the veteran injured his neck in
1970, since, as is discussed above, that statement was based
on a history provided by the veteran which is not supported
by the evidence or the record.
In this case, there is no credible medical evidence of record
to support a finding that the veteran was diagnosed with a
neck disorder during active service. There is no evidence of
record that the veteran was treated for a neck disorder
within twelve months of his separation from service. There
is no evidence of record to suggest that a neck disorder
existed until 2004, when the veteran filed his claim for
service connection and subsequently sought treatment for a
neck disorder.
The absence of any diagnosis of the claimed neck disorder in
the service and post-service medical records until 2004
constitutes negative evidence tending to disprove the
assertion that the veteran had a neck disorder during his
service. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact); see also 38 C.F.R.
§ 3.102 (noting that reasonable doubt exists because of an
approximate balance of positive and "negative" evidence).
The lack of any evidence of symptoms suggestive of a neck
disorder until 2004, over thirty years after service, is
evidence which tends to show that a neck disorder was not
incurred in service.
The Board does not find the veteran's contention that he
injured his neck in service and has had problems with it ever
since persuasive. While the veteran contends that he simply
did not mention his neck as he considered it part of his back
disability, the fact remains that no medical examiner ever
noted cervical problems and radiologic examination in 1983
showed a normal neck. See Buchanon v. Nicholson, 451 F.3d
1331 (2006) (the Board may weigh the lack of contemporaneous
medical records against a veteran's lay evidence, but that
the lack of such records does not render lay evidence not
credible). Thus, if the veteran did in fact injure his neck
in service, any problems he experienced at that time were no
more than acute and transitory.
In addition, the absence of evidence of a neck disorder
during service is supported by affirmative evidence that
tends to show that the claimed disorder was not incurred
during that time. Primarily, this affirmative evidence is
the June 2008 VA opinion which concluded that a neck disorder
is a relatively new development not related to service. The
Board finds that this opinion is credible evidence that a
neck disorder is not related to service.
The only evidence supporting the veteran's claims that the
current neck disorder is related to service are the veteran's
own statements. Again, the Board notes that the statements
of the veteran and his representative to the effect that his
neck disorder is causally connected to his active service are
not probative as there is no evidence in the record that he
has any medical knowledge or expertise to render such an
opinion. Espiritu, supra. Further, there is no competent
medical opinion of record that provides an etiologic link,
whether by causation or by aggravation, between the veteran's
current neck disorder and his active service.
In addition, the Board finds that the veteran's neck disorder
is not proximately due to his service-connected back
disability. The June 2008 VA opinion is affirmative evidence
that tends to show that the two are not related, as it
concludes that the pathology of one does not relate to the
pathology of the other. The Board finds that this opinion is
credible evidence that a neck disorder is not related to
service. Furthermore, the only evidence supporting the
veteran's claims that the current neck disorder is related to
the back disorder are the veteran's own statements, which are
not probative as there is no evidence in the record that he
has any medical knowledge or expertise to render such an
opinion. Espiritu, supra. Further, there is no competent
medical opinion of record that provides an etiologic link,
whether by causation or by aggravation, between the veteran's
current neck disorder and his service-connected back
disability.
After consideration of the entire record and the relevant
law, the Board finds that the veteran's back disorder is not
related to his active service or to a service-connected
disability. While it is apparent that the veteran currently
has a neck disorder, the medical evidence of record as a
whole supports the proposition that there is no etiological
relationship between the origin and/or severity of the neck
disorder and service or a service-connected disability.
Therefore, the Board finds that the preponderance of the
evidence is against the veteran's claim of service connection
for a neck disorder. As such, the evidence is insufficient
to support a grant of service connection.
ORDER
Service connection for a neck disorder is denied.
REMAND
In April 2008, the Board remanded the claim for service
connection for allergies and instructed the RO/AMC to obtain
an addendum to an October 2004 opinion. The addendum was to
address the etiology of the veteran's chronic maxillary
sinusitis. The Board asked that a complete rationale for the
opinion be provided. In June 2008, the addendum was
prepared. The claims file was reviewed and a history of
treatment was provided, but the examiner did not provide a
rationale for the opinion that was given. Without such
rationale, this opinion is inadequate. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical
examination when it is necessary to decide the claim).
Furthermore, the Board did specifically request a rationale,
and the Board errs as a matter of law when it fails to ensure
compliance with its remand orders. See Stegall v. West, 11
Vet. App. 268 (1998). Given the need for a new addendum and
given the fact that the last examination took place in
October 2004, the Board finds that the veteran should be
afforded a complete new examination and a new opinion should
be based on that examination.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a new VA
examination. The entire claims file
must be made available to the VA
examiner. Pertinent documents should
be reviewed. The examiner should
conduct a complete history and physical
and assign all relevant sinus- and
allergy- related diagnoses.
The examiner should state whether any
current sinus or allergy problems are
at least as likely as not related to
the veteran's sinus and allergy
problems in service. A complete
rationale for the opinion should be
provided.
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of causation as
it is to find against causation.
2. After completing the above action,
and any other development as may be
indicated by any response received as a
consequence of the actions taken in the
paragraphs above, the claim should be
readjudicated. If the claim remains
denied, a supplemental statement of the
case should be provided to the veteran
and his representative. After the
veteran and his representative have had
an adequate opportunity to respond, the
appeal should be returned to the Board
for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs